Friday, May 30, 2008

In Atlantic v. Andersen, both sides have filed objections to the Magistrate Judge's attorneys fee award of $107,834, the RIAA saying that the amount should not have exceeded $62,000, Ms. Andersen saying that the award should be multiplied due to the difficulty in finding counsel willing to take on such a case.

Thursday, May 29, 2008

The RIAA has commenced yet another case targeting University of Maine Students, BMG v. Does 1-11.

Like all other "John Doe" cases brought by the RIAA, it was brought ex parte.

This time, however, the judge declined to sign the proposed ex parte discovery order, noting that

I see no reason for the court to take immediate action in this case as there is no evidence that records are about to be destroyed.

The Court ordered the court papers to be unsealed, directed the RIAA to give copies of the motion to the University of Maine's legal counsel, and reserved ruling on the motion in light of the pending motions by the defendants in the 2 earlier cases.

The judge, Magistrate Judge Margaret J. Kravchuk, is the same judge who suggested an order to show cause for Rule 11 sanctions against the plaintiffs and their lawyers in Arista v. Does 1-27.

[Ed. note. Is it just me, or has the stupidity of the RIAA lawyers attained new heights? To bring an ex parte discovery application before a judge who already has suggested they should be subjected to Rule 11 sanctions, based upon affidavits of "emergency" which have been previously shown to be false, and which are based on illegally procured evidence, at the same time that there is also a Rule 11 motion pending against them for bringing an unauthorized "action in aid of discovery"? Or is it the record companies who are stupid, since they're the ones actually paying these lawyers to do these things? -R.B.]

In Arista v. Does 1-27, the Portland, Maine, case targetting 27 University of Maine students, the RIAA has filed its opposition to the motions by one group of John Does to vacate the ex parte discovery order, quash the subpoena issued pursuant to the order, and vacate the declaration of Carlos Linares.

This is the same case in which

-Magistrate Judge Kravchuk has suggested the imposition of Rule 11 sanctions based on false statements of fact made by the RIAA lawyers in order to justify the misjoinder of multiple John Does;-one group of eight (8) students joined together and hired a prominent Portland, Maine, law firm to represent them; -two other students are being represented by the University of Maine Law School's Cumberland Legal Aid Clinic; and-the student attorneys of the Cumberland Legal Aid Clinic have filed a Rule 11 motion against the plaintiffs and their attorneys.

Tuesday, May 27, 2008

Although it is not strictly on topic for this blog, we have decided to initiate partial coverage of the case of Viacom v. YouTube. (By 'partial coverage' I mean that I will be selective, picking out some of the most important events, rather than attempt to be exhaustive.)

Viacom v. YouTube presents important issues in the war being waged by large content owners to try and shut down the internet as we know it ( a war that is familiar to anyone who has read up on the RIAA's creative "making available" and "offer to distribute" theories in the RIAA v. The People cases ).

YouTube's recent filing -- an answer to the amended complaint -- has received a lot of press attention, but I noticed that the press accounts did not provide the readers with actual copies of the litigation document.

That's where we come in.

YouTube's answer contains this statement, which pretty well sums up what is at stake:

Viacom’s lawsuit challenges the protections of the Digital Millennium Copyright Act ("DMCA") that Congress enacted a decade ago to encourage the development of services like YouTube. Congress recognized that such services could not and would not exist if they faced liability for copyright infringement based on materials users uploaded to their services. It chose to immunize these services from copyright liability provided they are properly responsive to notices of alleged infringement from content owners.

Looking at the online world today, there is no question that Congress made the correct policy choice. Legitimate services like YouTube provide the world with free and authorized access to extraordinary libraries of information that would not be available without the DMCA -- information created by users who have every right to share it. YouTube fulfills Congress’s vision for the DMCA. YouTube also fulfills its end of the DMCA bargain, and indeed goes far beyond its legal obligations in assisting content owners to protect their works. By seeking to make carriers and hosting providers liable for internet communications, Viacom's complaint threatens the way hundreds of millions of people legitimately exchange information, news, entertainment, and political and artistic expression.

(Note: The excellent Groklaw site has perceived the same need, and has posted copies of the documents, as well as *txt versions. And of course, Groklaw's usual outstanding commentary and discussion is there too.)

For Austin rockers Spoon, 2007 was a breakthrough year — but not because they sold a lot of records. Ga Ga Ga Ga Ga, their album on the indie label Merge, garnered more radio play than any disc in their 15-year history and earned them an appearance on Saturday Night Live. So far the disc has moved just over 250,000 copies, according to Nielsen SoundScan — about half of what Spoon's manager, Ben Dickey, believes it would have sold even five years ago. "But as far as the band is concerned, the record is a hit," says Dickey.

The reason? CD sales are no longer the yardstick the band uses. While hip-hop and pop artists ranging from Jay-Z to Britney Spears have long used recordings to sell every- thing from perfume to liquor, rockers are only just starting to think of album sales as a component — rather than the sum of — the commercial equation. Spoon have been actively licensing their music for use in films, television shows and a Jaguar commercial, making money, gaining exposure and moving up from clubs to 3,000-seat venues.

Album sales are down 25 percent since 2000, leading to widespread predictions of the record business' demise. But smart artists and managers are finding new ways to reach fans and make money. "For some bands we represent, there's more licensing income than record sales," says Carol Sue Baker, whose Ocean Park Music Group has been connecting independent artists with music supervisors for movies, TV and advertising agencies since the early 1990s.

I work hard on this blog, for no pay, so if I can be excused a moment of unseemly, off-topic, self-congratulation...... Justia.com has "Recording Industry vs. The People" listed as the #2 all-time copyright law blog in terms of popularity, right behind David Donoghue's Chicago IP Litigation Blog.

(And if I can't be excused a moment of unseemly, off-topic, self-congratulation, I'm sure I'll hear about it in the comments section, which many consider, with good reason, the best part of this blog, since that's where the sharp-eyed, thoughtful, analysis and commentary which I'm unable to provide, takes place.)

But seriously, readers.... thank you for reading and contributing to "Recording Industry vs. The People."

Friday, May 23, 2008

We reported 2 weeks ago that the Fort Worth, Texas, case of Arista v. Greubel had been settled. This is the case in which Nettwerk Music was paying for the costs of the defense.

We have since learned, through a comment posted here, that the RIAA has sued Mr. Greubel's children. The name of the case is UMG v. Greubel.

The docket number is 06-860, N.D. Texas.

Among the things we have learned through an examination of the docket sheet is that

-one of the four defendants is a minor;-a motion for appointment of a guardian ad litem had been made, and was then withdrawn;-a settlement conference was held at which Matthew Oppenheim, instead of any record company representatives, was the sole "client" representative;-the RIAA has attempted to subpoena, from the father, David Greubel, his communications with his attorneys and with Nettwerk Music;-Mr. Greubel has made a motion to quash the subpoena, and the motion has been referred to the Magistrate Judge; and-a hard drive inspection was done under a stipulated protective order similar to the protective order in SONY v. Arellanes.

We have posted a sampling of miscellaneous documents from the Court file.

[Ed. note. The report of settlement conference is interesting. Once again Matthew "the Enforcer" Oppenheim was there to insist upon his pound of flesh. For how much suffering has this one man been responsible? -R.B.]

Marie Lindor has made a motion for reconsideration in UMG v. Lindor, asking the Magistrate to recall his previous decision denying her motion to compel MediaSentry to respond to the subpoena duces tecum she had served.

The above donation button links to a PayPal account established by Marie Lindor's family for people who may wish to make financial contributions to Ms. Lindor's legal defense in UMG v. Lindor. Contributions are not tax deductible.

Tuesday, May 20, 2008

In Capitol v. Thomas, the Court has adjourned the briefing schedules for the determination of whether it had committed a "manifest error of law" when it accepted the RIAA's proposed jury instruction that merely "making available" constituted an infringement of the distribution right and overlooked the controlling Eighth Circuit case, National Car Rental System v. Computer Associates, which had held that there can be no infringement of the 17 USC 106(3) "distribution right" without actual dissemination of copies or phonorecords.

The new schedules are:

For the plaintiffs and defendant:

Briefs due June 23rd, at noon."Reply" briefs due June 30th, at noon.Oral argument: Monday, August 4, 2008, 10:00 A.M., Federal courthouse, Duluth, MN

For amicus curiae:

Amicus curiae briefs, and motions for permission to file, due June 13th, at noon.Opposition to any motion for leave to file amicus curiae brief due June 17th, at noon.

I am a business lawyer in New York City, practicing at Ray Beckerman, P.C.. The purpose of this site is to collect and share information about the wave of sham "copyright infringement" lawsuits started by four large record companies, and other areas of concern to digital online copyright law, and to internet law in general. -Ray Beckermanbeckermanlegal.com(Attorney Advertising)

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2." -Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove